U.S. Supreme Court Rules That Second Amendment Limits State And Local Government Gun

6/29/2010

In a 5-4 decision authored by Justice Samuel Alito, the U.S. Supreme Court ruled that the Second Amendment is "incorporated” into the Fourteenth Amendment, and thus protects against infringement of the right to keep and bear arms by state and local governments, not just the federal government. McDonald v. Chicago, 08-1521.

Monday's ruling means that the Supreme Court's June 2008 decision in Heller v. District of Columbia, in which the Court finally recognized that the Second Amendment protects an individual right to keep and bear arms, applies equally to all levels of government.

The Supreme Court did not actually rule on whether the Chicago ordinance being challenged, which makes legal ownership of handguns within the city virtually impossible, was unconstitutional. Instead, it remanded the case back to the lower courts to issue that ruling.

Perhaps most significantly, the McDonald decision makes clear that the right to keep and bear arms is itself "among those fundamental rights necessary to our system of ordered liberty.” Although the Heller decision recognized that the right to self-defense was fundamental, it never expressly recognized that the right to keep and bear arms was also fundamental. That distinction has been used by several courts to justify the application of a lower level of scrutiny of gun control laws in cases brought to challenge these laws since Heller, and may prove critical in determining that a higher level of scrutiny is appropriate in evaluating the constitutionality of gun control laws in future cases.

The McDonald decision does not mean that every state and local regulation of firearms will be struck down as unconstitutional, nor that any laws will be struck down overnight. Rather, the decision is a vehicle to bring legitimate strategic legal challenges to state and local laws before the lower level courts. These courts will have to define the scope of the Second Amendment right. Some questions that still need to be answered are: whether the right to keep and bear arms extends beyond the home, whether prohibitions of certain commonly owned firearm are valid, whether certain low-level criminal convictions can result in the permanent deprivation of one's Second Amendment rights etc. And litigation in the lower courts will be necessary to determine what level of scrutiny courts will apply in reviewing governmental infringements on the right to keep and bear arms.

Several such lawsuitshave already been filed in California, including some by the NRA and the CRPA Foundation through their partnership in the California Legal Action Project. Those include Jackson v. City and County of San Francisco (a challenge to San Francisco's ordinances requiring handguns to be secured in a safe or with a trigger lock in the home if not on one's person, a prohibition on the discharge of firearms, even for self-defense, and a prohibition on "non-sporting ammunition”; Peruta v. San Diego County (a challenge to the CCW issuing scheme by the Sheriff there); and coming soon, CRPA Foundation v. City of Los Angeles (a challenge to that city's ban on the transfer of "ultra-compact” handguns, .50 caliber firearms and ammunition, and "Saturday Night Specials.” (For more information on these lawsuits and to view the pleadings, search http://www.calgunlaws.com).

The Supreme Court's decision is a huge victory for law-abiding gun owners throughout the country. Although it is likely that many anti-gun politicians in California will not concede the victory easily, the momentum is on the side of law-abiding gun owners. The McDonald case is not the end of the fight, it is just the end of the beginning. CRPA has been and will continue to fight for the rights of California gun owners on all fronts, including the courts. Visit www.crpafoundation.org for information on active and pending litigation.